WAYNE COUNTY PROSECUTOR v. DEPARTMENT OF CORRECTIONS

NOTICE: The slip opinions posted here are
the latest electronic versions available from the Michigan Court
of Appeals. Updates are posted as received from the courts.
Consult the advance sheets and bound volumes of the official
reports for final revisions and proper pagination. Errata and
requests for correction of Michigan Court of Appeals opinions
should be submitted to: Deputy Reporter of Decisions, 800
Washington Square Building, Lansing, MI 48933; (517) 373-0714.

WAYNE COUNTY PROSECUTOR

v.

DEPARTMENT OF CORRECTIONS

August 15, 2000

No. 214873

Wayne Circuit Court

LC No. 97-740553-CZ

WAYNE COUNTY PROSECUTOR,

Plaintiff-Appellant,

V

DEPARTMENT OF CORRECTIONS,

Defendant-Appellee.

Before: O’Connell, P.J., and Murphy and
Jansen, JJ.

JANSEN, J.

Plaintiff appeals as of right from an order
granting summary disposition in favor of defendant pursuant to
MCR 2.116(C)(8). We affirm.

This case arises out of plaintiff’s
attempt to have MCL 791.242; MSA 28.2312, relating to a final
order of discharge from parole, declared unconstitutional as a
violation of the separation of powers doctrine. Specifically, by
a letter dated November 18, 1997, plaintiff requested
defendant’s director to rule thatSect. 42 is
unconstitutional given the exclusive power vested in the Governor
to commute sentences and pardon prisoners and, therefore, does
not empower the Parole Board to grant the past discharges of
sentences or to grant the discharges of sentences "hereafter
contemplated."

By way of example, plaintiff offered the facts
of the following three prisoners: David D. DuPuis, James B.
Canady, and Robert J. Owens, Jr. Mr. DuPuis was sentenced on
September 27, 1983 to 2 ½ to 15 years in prison for burglary and
receiving and concealing stolen property and he was sentenced on
December 16, 1985 to 7 to 20 years in prison for breaking and
entering. Mr. DuPuis was granted a parole on September 24, 1993,
and was discharged from parole on September 24, 1995. DuPuis
committed another felony (home invasion) on October 21, 1996, for
which he was sentenced to 1 ½ to 20 years in prison. Mr.
DuPuis’ parole for the conviction of home invasion was to
begin on January 1, 1998, and end on January 1, 2000. Mr. Canady
was serving a prison sentence of 4 to 20 years when, on December
8, 1989, Mr. Canady was convicted of assault on a prison employee
and given another sentence of 1 to 4 years. Mr. Canady was
paroled on April 29, 1992, and was discharged from his parole on
April 29, 1994. Mr. Canady committed another felony (malicious
destruction of property) on January 6, 1997, and sentenced to 1
year and 1 day to 15 years. Mr. Canady’s parole for the
convictions of malicious destruction of property was to begin on
January 6, 1998, and end on January 6, 2000. Mr. Owens, who had
accumulated 22 convictions, was sentenced to 3 to 10 years in
prison following a conviction of fourth habitual offender in
December 1994. Mr. Owens’ latest parole was to begin on
January 4, 1998, and end on January 4, 2000. It is
plaintiff’s contention that the Parole Board does not have
the power, either under the constitution or under the statute, to
discharge the unserved maximum sentence once it discharges the
prisoner from parole, that is, ends the parolee’s
supervision.

Defendant’s director did not respond
within thirty days to plaintiff’s request, thus, it was
considered to be denied and vested the circuit court with
jurisdiction. See MCL 24.263; MSA 3.560(163). On December 22,
1997, plaintiff filed a two-count complaint for a declaratory
judgment in the Wayne Circuit Court. In count I of its complaint,
plaintiff sought a declaration thatSect. 42 is
unconstitutional because it infringes on the Governor’s
exclusive power to pardon prisoners or commute sentences under
Const 1963, art 5,Sect. 14. In count II of the complaint,
plaintiff sought a declaration thatSect. 42, even if
constitutional, precludes a prisoner’s unserved sentence
from being discharged if the prisoner ever violates a parole
order, no matter how many subsequent periods of parole the
prisoner may successfully complete.

MCL 791.242; MSA 28.2312 provides:

When any paroled prisoner has faithfully
performed all of the conditions and obligations of his parole for
the period of time fixed in such order, and has obeyed all of the
rules and regulations adopted by the parole board, he shall be
deemed to have served his full sentence, and the parole board
shall enter a final order of discharge and issue to the paroled
prisoner a certificate of discharge.

No parole shall be granted for a period less
than 2 years in all cases of murder, actual forcible rape,
robbery armed, kidnapping, extortion, or breaking and entering an
occupied dwelling in the night time except where the maximum time
remaining to be served on the sentence is less than 2 years.

Plaintiff claims that this statutory provision
is unconstitutional because the Governor has the exclusive power
to grant commutations and pardons pursuant to Const 1963, art
5,Sect. 14, which provides:

The governor shall have power to grant
reprieves, commutations and pardons after convictions for all
offenses, except cases of impeachment, upon such conditions and
limitations as he may direct, subject to procedures and
regulations prescribed by law. He shall inform the legislature
annually of each reprieve, commutation and pardon granted,
stating reasons therefor.

On January 23, 1998, defendant filed a motion
for summary disposition pursuant to MCR 2.116(C)(8) and (10). The
arguments made in the lower court are the same as those on
appeal. With respect to count I, plaintiff argues that the Parole
Board cannot grant discharges to parolees until the expiration of
their maximum sentence; otherwise the Parole Board would be
illegally exercising a power vested exclusively in the Governor,
namely, the power to pardon. Plaintiff further claims that,
although the Legislature has the authority to provide for
indeterminate sentencing under Const 1963, art 4,Sect. 45,
this authority extends only to the "release" of
prisoners from detention and does not permit the Legislature to
enact laws providing for the discharge of unserved time on
maximum sentences. Const 1963, art 4,Sect. 45 specifically
provides:

The legislature may provide for indeterminate
sentences as punishment for crime and for the detention and
release of persons imprisoned or detained under such sentences.

The trial court found thatSect. 42 is not
an unconstitutional usurpation of the Governor’s exclusive
right to pardon or commute, relying on our Supreme Court’s
decision in Oakland Co Prosecuting Attorney v Dep’t of
Corrections, 411 Mich 183; 305 NW2d 515 (1981). Contrary to
plaintiff’s assertion, the trial court did not err in
relying on that case inasmuch as the precise issue in that case
was whether the Prison Overcrowding Emergency Powers Act (1980 PA
519)—providing for the release of prisoners imprisoned under
indeterminate sentences—impermissibly infringed on the
Governor’s commutation power. The statute granted to the
Department of Corrections the power to reduce minimum sentences
to reduce prison overcrowding. The Court held that the statute
was within the authorization given to the Legislature under Const
1963, art 4,Sect. 45, and, thus, the statute was
constitutional. Oakland Co Prosecuting Attorney, supra, p
195. The Court specifically noted that the Legislature also has a
role in establishing the length of a sentence (pursuant to Const
1963, art 4,Sect. 45) and that the statute had not intruded
on the Governor’s power to pardon or commute sentences that
the governor feels the circumstances warrant in his discretion. Id.,
pp 193, 197.

Similarly, in the present case,Sect. 42
does not infringe on the Governor’s power to pardon
prisoners or commute sentences. Further, as noted by the Court inOakland Co Prosecuting Attorney, supra, pp 193-195, the
Legislature and the Governor share commutation power under the
state constitution and Const 1963, art 4,Sect. 45 authorizes
the Legislature to provide for "the detention and release of
persons imprisoned or detained under [indeterminate]
sentences." Section 42 does not infringe on the
Governor’s power to pardon or commute sentences.

In addition, Michigan courts have consistently
held over the course of time and throughout various changes in
the law that the indeterminate sentencing process, as authorized
by Const 1963, art 4,Sect. 45, permits the absolute
discharge of any unserved time on the maximum sentence if a
prisoner successfully completes parole. See In re Dawsett,
311 Mich 588, 592-593; 19 NW2d 110 (1945), In re Eddinger,
236 Mich 668, 670; 211 NW 54 (1926); People v Young (On
Remand), 220 Mich App 420, 428; 559 NW2d 670 (1996); People
v Raihala, 199 Mich App 577, 579; 502 NW2d 755 (1993).
Although plaintiff relies for the most part on the case of People
v Cummings, 88 Mich 249; 50 NW2d 310 (1891), the Supreme
Court held in In re Manaca, 146 Mich 697, 699, 704; 110 NW
75 (1906), and People v Cook, 147 Mich 127; 110 NW 514
(1907), that the 1902 amendment that added the predecessor to
Const 1963, art 4,Sect. 45, eliminated the constitutional
obstacles to indeterminate sentencing by the Legislature that
were identified in Cummings. See also, Oakland Co
Prosecuting Attorney,supra, p 194. Thus, there is no
showing that the Legislature here has exceeded the scope of its
power under Const 1963, art 4,Sect. 45.

Plaintiff further argues that a release from
detention is distinguishable from a discharge of a sentence and
that the Legislature’s action is outside of its scope of
authority under Const 1963, art 4,Sect. 45 to provide for
the release of persons imprisoned or detained under indeterminate
sentences, as opposed to an absolute discharge from a sentence.
However, we find that the trial court did not err in ruling that
"release" and "discharge" are "largely
synonymous." We agree with the trial court, for the reason
that plaintiff’s interpretation of the relevant
constitutional provisions would render the Legislature’s
authority under Const 1963, art 4,Sect. 45 to impose
indeterminate sentences meaningless; under such a construction,
sentences would always be determinate (i.e., the maximum term)
and only the period of incarceration would be indeterminate.
Certainly, had the framers of Const 1963, art 4,Sect. 45
meant only the period of incarceration to be
indeterminate, they would not have expressly authorized the
Legislature to impose indeterminate sentences.

Accordingly, the trial court did not err in
ruling that MCL 791.242; MSA 28.2312 is constitutional and does
not infringe on the Governor’s power to pardon prisoners and
commute sentences under Const 1963, art 5,Sect. 14.

Plaintiff argues, alternatively, that even if
the statute is found to be constitutional, the statute does not
authorize a discharge of a sentence in the same case where a
prisoner had violated the conditions of a parole that had
previously been granted. In other words, plaintiff asserts that
once a prisoner violates one parole order, the prisoner can never
have the sentence discharged no matter how many subsequent
periods of parole are successfully completed. Plaintiff argues
that the plain meaning of the statute is that all periods of
release on a given sentence constitute one parole. Therefore,
plaintiff contends that if a prisoner commits a new crime while
on parole, the "exercise of the sentence-discharge power of
[MCL 791.242; MSA 28.2312] is lost, and [the] maximum sentence
thereafter can only be discharged by the [G]overnor."

We agree with the trial court that this
interpretation is contrary to the express language of the
statute, which states that a parolee’s remaining sentence
may be discharged "when the paroled prisoner has faithfully
performed all of the conditions and obligations of his parole for
the period of time fixed in such order . . . ." Section
42 employs the singular form of the word "order,"
compelling the conclusion that the Legislature must have intended
that a prisoner’s compliance with the terms of each parole
order be considered independently. Further, as noted by
defendant, the statute contains no language that limits the
discharge provision only if the first grant of parole is
successfully completed.

Accordingly, the trial court did not err in
rejecting plaintiff’s proffered interpretation of MCL
791.242; MSA 28.2312 because the plain meaning of the statute
does not support plaintiff’s interpretation. The statute
simply does not state that if a parolee violates the terms of
parole, the parolee forfeits any further possibility for a full
discharge. Rather, the statute only requires that the parolee
faithfully perform all the conditions of parole for the period of
time fixed in the parole

order and obey all the rules and regulations
adopted by the Parole Board so that it can enter a final order of
discharge.